Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Lets Go Adventures Pty Ltd v Barrett [2017] NSWCA 243 Hearing dates: 31 August 2017 and 1 September 2017 Decision date: 22 September 2017 Before: Basten JA at [1];
Gleeson JA at [1];
Adamson J at [9]Decision: (1) Refuse leave to the respondent to file the notice of contention dated 1 September 2017.
(2) Allow the appeal.
(3) Set aside the judgments of Gibson DCJ dated 25 November 2016 and 16 December 2016 and the costs order made on 22 December 2016.
(4) In lieu thereof,
(a) order that there be judgment for the defendant, and
(5) Order that the respondent pay the appellant’s costs of the appeal.
(b) order that the plaintiff pay the defendant’s costs of the trial.Catchwords: CIVIL PROCEDURE – cross-examination – obligations of counsel to conduct cross-examination in fair and civil manner – obligations of trial judge to ensure fair process – permissibility of adverse witness credibility findings when witness subjected to confronting and insulting cross-examination
CIVIL PROCEDURE – notice of contention – respondent sought leave to file notice of contention after commencement of hearing – whether leave should be granted – whether grounds of contention hopeless
CONSUMER LAW – guarantee that services will be rendered with due care and skill under Australian Consumer Law s 60 – whether plaintiff diving instructor suffered decompression illness when assisting incapacitated client during dive – whether defendant ought to have known that plaintiff required oxygen – whether insufficient oxygen on board boat – whether plaintiff provided with insufficient assistance in lifting client onto boat – whether defendant advised client to dive with knowledge of client’s pre-existing head injury
DAMAGES – assessment of quantum – whether failure of plaintiff to mitigate loss – whether correct assessment of loss of earning capacity and past and future economic loss – whether correct assessment by reference to Australian Consumer Law s 236
TORTS – negligence – breach of duty – whether defendant’s alleged breaches resulted in its liability under Civil Liability Act 2002 (NSW)
TORTS – negligence – causation – Civil Liability Act 2002 (NSW) s 5D – whether alleged lack of oxygen on boat led to plaintiff suffering decompression illness – whether client would have abandoned dive if not for defendant’s advice
TORTS – negligence – defences to liability – Civil Liability Act 2002 (NSW) s 5L – whether decompression illness constitutes the materialisation of a well-known and obvious risk of a dangerous recreational activityLegislation Cited: Civil Liability Act 2002 (NSW), ss 5D, 5L, 5M, 5N, 56; Pts 1A, 8
Competition and Consumer Act 2010 (Cth), ss 51ACA, 139A; Sch 2 – Australian Consumer Law, ss 3, 60, 61, 64, 236, 267, 275
Fair Trading Act 1987 (NSW), ss 4, 28; Pt 3
Judiciary Act 1903 (Cth), s 80
Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW), r 61
Trade Practices Act 1974 (Cth), ss 74, 68B
Workers Compensation Act 1987 (NSW), s 151ZCases Cited: Abalos v…
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- AGLC
- Lets Go Adventures Pty Ltd v Barrett [2017] NSWCA 243
- Case
- [2017] NSWCA 243
- Decision Date
CaseChat Overview and Summary
The Court of Appeal was required to determine several key legal issues. These included whether the defendant had breached its statutory obligations under section 60 of the Australian Consumer Law by failing to render services with due care and skill, specifically concerning the provision of oxygen and assistance to the plaintiff. The court also had to consider whether the defendant's alleged advice to the plaintiff to dive with a pre-existing head injury caused the plaintiff to undertake the dive. Furthermore, the court examined whether the defendant's actions constituted negligence under the Civil Liability Act 2002 (NSW), including issues of causation and the applicability of the defence of materialisation of an obvious risk of a dangerous recreational activity under section 5L of that Act. Finally, the court reviewed the assessment of damages, including the plaintiff's alleged failure to mitigate his loss and the quantum of economic loss.
The Court of Appeal allowed the appeal, setting aside the primary judge's findings and orders. The court found that the plaintiff's cross-examination had been confronting and insulting, which improperly influenced the primary judge's adverse credibility findings against the defendant's witnesses. The court also refused the respondent leave to file a notice of contention, finding its grounds to be hopeless. The court concluded that the plaintiff had not established the necessary elements of his claims under the Australian Consumer Law or negligence.
Consequently, the Court of Appeal ordered that there be judgment for the defendant at trial and that the plaintiff pay the defendant's costs of the trial. The respondent was also ordered to pay the appellant's costs of the appeal.
Orders
Orders of the court
(1) Refuse leave to the respondent to file the notice of contention dated 1 September 2017.
(2) Allow the appeal.
(3) Set aside the judgments of Gibson DCJ dated 25 November 2016 and 16 December 2016 and the costs order made on 22 December 2016.
(4) In lieu thereof,
(a) order that there be judgment for the defendant, and
(b) order that the plaintiff pay the defendant’s costs of the trial.
(5) Order that the respondent pay the appellant’s costs of the appeal.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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